Repeal of legislative immunity proposed in Arizona

PHOENIX – An Arizona senator gets in a fight with his girlfriend on a Phoenix freeway and avoids arrest. An Arkansas legislator leads officers on a high-speed chase through two counties and doesn't get taken into custody. A Georgia lawmaker claims he couldn't be prosecuted on a DUI charge.

In each case, a little-known privilege called legislative immunity that prevents the arrests of legislators while they are in session came into play.

The issue is getting a closer look in Arizona this year after a lawmaker introduced a resolution seeking to amend the state Constitution to delete wording barring the arrest of legislators during, and 15 days before, legislative sessions. Like those in many other states, Arizona's legislative immunity protects legislators from arrest except for "treason, felony or breach of the peace."

Then-Sen. Scott Bundgaard became a part of the debate after he was involved in a domestic violence incident on a Phoenix freeway last year. He and his girlfriend at the time pulled off to the side of the road after an argument while returning home from a Dancing with the Stars-type competition. The ensuring fight left both with cuts and bruises.

Police showed up and put Bundgaard in handcuffs. Officers testified that he identified himself as a legislator, cited the constitutional provision and demanded that they remove handcuffs, even though Bundgaard denies invoking legislative immunity.

Bundgaard was allowed to go home that night without being arrested, but his girlfriend spent the night in jail. Bundgaard was later prosecuted and ended up pleading no-contest to a misdemeanor charge, and the Peoria Republican eventually was ousted as Senate majority leader and quit the Legislature.

The girlfriend was not prosecuted after she was deemed the victim in Bundgaard's criminal case. Bundgaard would have been arrested on possible domestic violence charges and suspicion of DUI on the night of the incident if not for the immunity law, the sergeant and an officer testified.

State Sen. Steve Gallardo introduced the legislation to change the Constitution because he believes it's an unfair and outdated protection afforded lawmakers.

"The question is should legislators have a get-out-of-jail free card. That's exactly what it is. And I really think voters would come out and say no — they should not have this card," said Gallardo, a Phoenix Democrat. "We should be living by the laws that we pass."

The National Conference of State Legislatures says most states have similar legislative immunity provisions in their constitutions. Members of Congress technically have the protection as well, but it has been so narrowly interpreted by the courts that U.S. lawmakers gain no real benefit from it.

Experts say legislative immunity, along with related protections for legislative speech and debate, has its roots in the 16th and 17th centuries, when English monarchs frequently feuded with lawmakers.

"In essence this is a form of separation of powers, since it is the executive that has the power to arrest and prosecute," said Toni McClory, author of a textbook on the Arizona Constitution.

It's not known how many times legislative immunity is invoked, but the provision occasionally makes headlines.

Legislative immunity was in the news in Arizona two years ago when a newspaper reported that Gov. Jan Brewer was briefly detained — and handcuffed — by state police after a freeway accident in 1988 when she was a legislator.

Officers thought Brewer was under the influence of alcohol, but they decided that legislative immunity prohibited an arrest. Brewer denied being under the influence the night of the accident.

She didn't invoke the privilege but an officer determined she was a senator by noticing an identification placard on the floor of her car, a police report said.

An Arkansas sheriff's deputy last year mistakenly thought legislative immunity meant he couldn't arrest a speeding legislator who led officers on a high-speed chase through two counties. The lawmaker was let go with a scolding but later charged and convicted of fleeing, careless driving and improper passing. He's appealing.

There was talk in 2005 of amending the Georgia Constitution to repeal legislative immunity after a lawmaker tried unsuccessfully to use it in a DUI case, but the provision remains law in the Peach State.

The related protection for legislative speech figured in a 1997 court ruling that a Kansas legislator couldn't be prosecuted on a blackmail charge stemming from a threat to another lawmaker. The conduct involved was "possibly criminal and clearly unethical," but was protected as legislative speech, the Kansas Supreme Court ruled.

Given changes in society since Arizona and other states adopted their immunity provisions a century or two ago, it could be time to consider changes, said George Anagnost, an Arizona judge who writes on constitution topics.

But with the contentiousness in politics today, the immunity may not have outlived its usefulness, Anagnost said. "It makes sense to have these safeguards."

Some Arizona legislators agree.

Sen. Ron Gould, a Bundgaard critic who chaired his ethics proceeding, said he can envision the possibility of a rogue law enforcement officer harassing a legislator to stop him from traveling to the Capitol to vote on legislation on a controversial topic such as public employee benefits.

Better to keep legislative immunity on the books but hold lawmakers accountable through ethics proceedings if they abuse it, the Lake Havasu City Republican said.

Gallardo's resolution has been assigned to a Senate committee whose chairman is noncommittal about giving it a hearing.

"Any time you have a kneejerk reaction to one instance you run the risk of making a mistake, and I think that's what is happening here. It's a kneejerk reaction to the Bundgaard situation," said Sen. Rick Murphy, R-Peoria.

Gallardo said he's certain voters would approve his proposal if it reaches the November ballot. And chances for that are good with current scrutiny of legislative ethics because of Bundgaard's case and disclosures of Fiesta Bowl freebie trips and game tickets given legislators, he said.

"When you start looking overall at the role of the legislator(s) and what they're allowed and they're not allowed, all of that is going to be looked at this year, and I think immunity should be at the top of the list," he said.